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TAVO LECTURES 



Constitution of the United States 



(•oXCI.l'niXG A COl'RSE OX 



THE MODERlSr STATE, 



PELIVERKD IX TIIK 



AAV SCllOOL OP (Ol.r.AIUlA (01.1 ]:(iE. lI'KlNd THE AV1>'TEP. OP ]8(;0 AND ]8(;], 



TO WHICH IS appkxd?:d 



AN ADDRESS ON SECESSION 

WRITTEN JN THE YEAR 1851. 
FRANCIS LIEBEE, LL. I). 

CORRESrOXDINi; MEMKKR OK 'IHE IXSTITITE OF ERAXCE; AITHOR 0F"C'IV1I. LIBERTY t 

AXn SELFOC'VERXMEXT," Ac, ic. 



N U L L 1 ME M A X r I P A V I 



NEW YORK: 
I'RINTKD BY DIKECTTON OF THE BOARD OF TRUSTEES. 

1861. 



>v^' N *0k :v^ 



WHAT" IS OUR CONSTITUTION, -LEAGUE, PACT, OR GOVERMENT? 



TWO LECTURES 



Constitution of the United States 



CONCLUDING A COURSE OX 



THE MODERN STATE, 



DELIVERED IN TUE 



LAW SCHOOL OF COLUiTBIA COLLEGE, DURING THE WINTER OF 1860 AND 1861, 



TO WHICH IS APPENDED 



AN ADDRESS ON SECESSION 



WRITTEN IN THE YEAR 1851. 



FRANCIS LIEBER, LL. D. 

CORRESPONDING MEMBER OF THE INSTITUTE OF FRANCE; AUTHOR OF "CIVIL LIBERTY 
AND SELF-G0-\T:RNMENT," Ac, &c. 



NULLI ME MANCIPAVI. 



NEW YORK: 
PRINTED BY DIRECTION OF THE BOARD OF TRUSTEES. 

1861. 



n^os 






Baker & God wur, Printers, 
Prlntin^-Houee Square, opposHe City HalJ, 



v1 



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ADVEETISEMENT. 

The author of these Lectures, emboldened by a friendship 
which he esteems a high honor, laid the manuscript before the 
Hon. Horace Binney, with a request that he would make such 
annotations as might appear necessary. " The opinions of the 
senior member of the American B9,r,'anid of so profound, phil- 
sophical, and elevated a jurist, must needs enhance the value 
of any discourse on the American Constitution. AVhen, there- 
fore, the manuscript was returned, the author could not allow 
himself to withhold from his readers Mr. Binney's notes, 
although they were strictly intended as memoranda for him- 
self alone. He obtained permission, not indeed without 
repeated entreaty, to publish these along with the Lectures — 
a liberality for which he wishes to express his grateful and 
affectionate acknowledgment. Apex autem senectutis tanta 
auctoritas. 

New-York, March, 1861. 



FIRST LECTURE. 

Having classified tlie constitutions of modern states, and 
discussed the characteristic features of the most prominent 
European fundamental laws, we now approach the question : 
What is the Constitution of the United States ? Do the States 
form* a league ? Or is the Constitution a pact, a contract — a 
political partnership of contracting parties ? Do we live in a 
confederacy? and if so, in a confederacy of what degree of 
unitedness? Or is the Constitution a framework of govern- 
ment for a united country — a political organism of a people, 
with its own vitality and self-sufficing energy ? Do we form a 
union, or an aggregate of partners at pleasure ? 

These are momentous questions — not only interesting in 
an historical or scientific point of view, but important as ques- 
tions of political life and social existence, of public conscience, 
of right and truth in the highest spheres of human action and 
of our civilization. At no time has the very character and 
essence of our Constitution been so much discussed as in ours. 
Never before have measures of such importance been so made 
to depend, in appearance, upon the fundamental character of 
the document called the Constitution of the United States, while 
never before have those in high authority attended less to its 
genesis, its contents, and its various provisions, in order to jus- 
tify actions aftecting our entire polity. Never before, either 
in our own, or in the history of our race, have whole commu- 
nities seemed to make acts of elementary and national conse- 
quence depend upon a single term ; upon the question whether 
the Constitution is a mere contract, or whether the word, de- 
rived as it is from constituere, must be understood in the sense 
in which Cicero takes it, when he speaks of constituere remjp'ub- 
Ucai7i — that is, organizing the common weal, putting it in 



6 LECTUKES ON THE 

order and connecting all the parts in mutual organic depend- 
ence upon one another.' 

I have used the words apparently and seemingly^ because 
it admits of little doubt, if of any, that those among the lead- 
ers in the present disturbances who make a world of conse- 
quences depend upon the solitary question, Is or is not the 
Constitution of the United States a contract ? argue on a fore- 
gone conclusion. Or is there a man living who believes that 
they would give up their pursuit of disunion, if it would be 
proved, by evidence ever so fair, substantial, and free from em- 
bittering passion, that the Constitution is not a compact, or is 
not a mere contract ? 

The difference between the attenuated logic of special 
pleading, drawn like wire through the draw-plate of technical 
terms, in order to make out a case, on the one hand, and a 
comprehensive search after truth and loyal adhesion to it when 
found, becomes more distinct and moreimportant as the sphere 
of action is more extended or the region of argument higher. 
It is a rule of fallacy — and fallacy has its rules, too — to seize 
upon one point, one term, to narrow down the meaning even 
of this one point, and then keenly to syllogize from that single 
starting point, irrespective of all other modifying and tributary 
truths or considerations. Wherever you find it, be at once on 
your guard — whether the discussion relates to religion, philoso- 
phy, to law, politics, or economy, to science, or to interpreting 
a document, a treaty of nations, or the last will of an individ- 
ual. The search after truth may be symbolized by the soaring 
eagle rising to the regions of light in order to view things 
from above, and not by the jDerforating gimlet, which alone 
would be no useful tool. 

You have probably seen, in the papers of this week, a let- 
ter written by a former Senator from Louisiana, in which he 
accepts the nomination for the convention of his State, which 
is to decide whether his State shall secede from the Union. 
This gentleman states that, in order to enable the people to 

' The reader will keep in mind, through the perusal of these lectures, that 
they were delivered in the beginning of the month of January, 1861 — that year, 
which the European will call the Italian Year, and which our historian may have 
to call the Sad Year. 



CONSTITUTION OF TIIE UNITED STATES. .7 

vote for or against him anderstandingly, it is necessary that 
his views and convictions should be distinctly known. He is 
for secession, and the course of his argument is this — I state it 
with punctilious correctness : — 

The Constitution of the United States is a contract. 

Mr. "Webster says a contract broken at one end is broken 
all over. 

The Constitution of the United States has been broken. 

Therefore, the contract is broken all to pieces, and is at an 
end. 

Therefore, each component part of the former United 
States stands for itself. (He does not say, where it stood before 
the adoption of the Constitution, for he speaks of Louisiana.) 

Therefore, each portion, thus floating for itself, can do 
what seems best to itself — become a separate empire, join a 
new confederacy, or become again (I suppose) a French de- 
pendency, or else a starting point for a new government throw- 
ing its seine over Mexico. 

Now, this argument contains almost as many fallacies as it 
contains positions, which it will be appropriate briefly to ex- 
hibit. 

Suppose, for argument's sake, that the Constitution is a 
contract, the important questions remain, What sort of con- 
tract ? — for every lawyer knows full well that there are many 
diflferent species of contracts, — and. Is it a mere contract ? Al- 
most all former publicists of note and weight (not to speak of 
such asFilmer) have considered, and very many of the present 
day continue to consider, all government to be founded upon an 
original pact or contract, as I have amply shown you in pre- 
ceding lectures.' This supposed social contract was formed for 
the common welfare of all, and every bad law is doubtless an 
infringement of the contract, but has any publicist mentioned 
that thereby each contracting member is authorized to become 
a fuor-uscito^ whom I have described to you ? On the con- 
trary, all publicists have maintained that the government con- 
tract is made in perpetuity. If I am asked, "Where is the his- 

' Even Ifapoleon HI. gave the name of compact to the so-called French Con- 
stitution, in his throne-speech of February, 1861. 



8 LECTURES ON THE 

torical proof that this government compact was made in per- 
petuity ? I answer, Nowhere ; nor is there a historical proof of 
the original contract, altogether. Those who founded their 
theory of the origin of government on a supposed contract, 
were forced by the inherent nature of society to acknowledge 
the perpetuity of society, and to make it tally with their orig- 
inal contract. They felt, although they did not formulate, the 
truth that society is a continuum. 

The laws of all European countries, and of those that have 
been peopled by Europeans, have called monogamic matrimony 
a contract. Asiatic law does not. When we call, however, 
wedlock a contract, we merely designate a certain aspect of 
this varied institution. Treat the relation of husband and 
wife, " for better and for worse," as a mere contract, and a com- 
mon contract, and you will speedily and logically make out a 
special pleading for licentiousness, and end with what has been 
shamelessly called Free Love. Who would seriously pretend 
that he was expressing the whole character or indicating the 
chief meaning of matrimony, — with its preceding love and poe- 
try, its exclusive and purifying affection, its school of unselfish- 
ness, its ordained procreation, and the founding of the family — 
that feeder of the State — its necessity, material and moral, for 
society, its sacred ties and indissolubleness, its religion and in- 
dustrial power, its internal communism and external individu- 
ality, its venerable history and energic action, — simj^ly by call- 
ing it a contract and nothing more ? 

Mr. Webster, we are continually told, has said that a con- 
tract broken at one end is broken all over. The great advocate 
made this statement when he spoke as counsel for his client. 
He overstated a certain truth ; he was too great a lawyer not to 
know that this does not apply to all contracts ; indeed, that it is 
applicable to a small class of contracts only. If this statement, 
— which represents contracts like Eupert's drops, shivered into 
countless fragments by the least crack at one end, — is to be ap- 
plied literally to all contracts and agreements, it is easy to 
prove, by the same show of logic, that every short-coming of the 
fulfillment of a promissory oath amounts to perjurj^, which, 
nevertheless, the law of no country admits. Everything de- 



CONSTITUTION OF THE UNITED STATES. 9 

pends upon what constitutes tlie breaking of the contract, and 
upon its nature. Or, wedlock being a contract, in which the 
wife promises to obey the husband, and the husband to love 
and honor his wife, is the whole contract irrecoverably broken 
" all over" by any act of disobedience on the part of the wife, 
or by the husband's ill-humor toward her ? 

Therefore — the argument goes on — the contract being bro- 
ken, each contracting party stands for itself. Suppose, then, 
the original thirteen States were, at any time, sovereign nations, 
merely leagued together by the Constitution, forming an alli- 
ance and nothing more, such as Prussia, Austria, Russia, and 
Great Britain formed against France, at the beginning of the 
present century ; and suppose, further, that the Rupert's drop 
has been broken by a single crack at the pointed end ; — under 
all these suj)positions they might be considered as having fallen 
to pieces and back into their original supposed miniature na- 
tionalities. But how can this apply to the State of the Senator 
to whom I have alluded, and to all those States which the 
United States as an entirety have formed of the common ter- 
ritory ? K the glue of the badly-glued casket has given way, 
the component parts are what they were before they were 
pieced together, and Louisiana must be again a territory for 
sale. But, we are perhaps answered, Louisiana has become in 
the meantime a sovereign nation. We ask, how or when? If 
this argument be adopted, it would stand thus : — 

Louisiana is a certain territory, whose people depend upon 
France — a power which has acquired the territory and govern- 
ment from Spain. 

For reasons satisfactory to ourselves, the contracting par- 
ties of the Constitution break their contract, in order to acquire, 
as a totality, the territory from France. For, you are aware, 
that President Jefferson acknowledged that neither he nor any 
one had the constitutional power of purchasing foreign terri- 
tory. But the mouth of the Mississippi was believed to be 
indispensable for the West, whose future greatness had been 
acknowledged by Wasliington,' and for the whole country. In 
England, Jefferson M'ould have gone to Parliament and asked 

' In the Farewell Address, among other papers. 



10 LECTFEES ON THE 

for an act of indemnity, for having broken the law ; our Con- 
stitution allows of no ex post facto laws, and all that could be 
done was to apj)rove by silence ; but certainly the Constitution 
was broken, and, therefore, broken " all over." 

Under this broken contract the United States admit, in due 
time, Louisiana as a State, — that is, they made her a full par- 
ticipant in the Union, and leave to her the self-government' 
which is enjoyed by the States already existing; for, until the 
very moment of her being created a participating State, she 
was territory, no independent nation, enjoying no attribute of 
a sovereign nation whatever. Nay more, only a portion of 
that which had constituted in early times the colony, was erected 
into a State, the other portions going elsewhere. 

Yet — so the Senator's letter says — the Constitution is bro- 
ken once more, — twice, " all over," — and Louisiana falls back on 
her original sovereignty, which, nevertheless, has never ex- 
isted, but has been produced in a mysterious fashion not unlike 
the procreative commingling of two principles in Hindoo cos- 
mogony, by the genetic embrace of two breaks of the Consti- 
tution " all over," The sovereignty is made by the Union, and 
then ante-dated to make it original, as sometimes commissions 
in the army are ante-dated to give the possessor a speedier 
chance of promotion. 

There is, I think, no more substance in that argument, in 
favor of the lawfulness of secession, which is founded upon the 
idea of the Constitution being a mere contract, with the addi- 
tional idea of Reserved Rights — implying, in this case, the re- 
served right of disregarding the contract and leaving the Con- 
stitution. This is the avowed and favorite argument of two 
most prominent statesmen, which will serve as an excuse for 
my mentioning one so unintelligibly void of meaning. What 
contract, even in the commonest spheres of life, can that be, 
the contracting parties of which reserve the right of not being 
ruled by it at all? The very idea of a contract, be it of what- 
ever kind, is that of mutual binding for some common pur- 

' I use the word self-government in the exact sense in which Mr. Jefferson 
used it, in a passage which I have quoted in the Civil Liberty and Self-Govern- 
ment. 



CONSTITUTION OF THE UNITED STATES. 11 

pose, and liow tliis element is expected to agree with an 
element of reserved right of mutual injury, we cannot see. Can 
there be such a thing as a reserved right of not doing at all 
what contracting parties agree to do V And, let me add, if 
this theory of reserved right to break up the contract of gov- 
ernment at any time be sound, and asserted in the spirit of 
truth, it logically follows that not only may a State leave the 
Union whenever it chooses, and do all sorts of things against 
the other States, but that, on the strength of reserved rights, 
each State may nullify any portion of the contract, and "re- 
sume" the power of coining money, of adopting a king, of 
sending ambassadors to foreign powers, of not considering the 
laws of the United States as the supreme laws of the land, and 
yet remain in tlie Union. There is nothing whatsoever in the 
argument on contract and reserved rights that makes it neces- 
sary to use secession in the bulk. Nullification was in- 
deed founded upon the assertion of reserved sovereignty ap- 
plied to a law — a portion of the government. We would thus 
logically arrive at the following graduation in our public law : 
Nullification ; Partial Secession from, or resumption of the at- 
tributes of the general government; Temporary Secession; 
Permanent Secession. Whether a government would be much 
of a government, or a government at all, under such circum- 
stances, is a question which the youngest among my hearers 
are perfectly competent to decide. 

Let us dismiss these introductory discussions of that which the 
Constitution is not, and rather inquire into what it is — into its 
essential character, its genesis, and its substance. In doing so, 
I must, however, first remind you of certain truths which we 

* JVb^e of Mr. Binney. — All this is very sound. Suppose the Constitution is a 

contract, or compact, or convention, Ac, it is a contract of government — a consti- 
tution — and this is in its nature and design /or ever. It comprehends the present 

and the -unborn — through all generations — posterity — which is as imlimited as 
time. That anj' one can break it up rightfully, or diminish its sphere of opera- 
tion, is an absurdity. Burlamaqui says, in describing the essential consti- 
tution of a state, that its first covenant is an engagement to join for ever in one 

body. 2 Burl. 22, 28. The Constitution of the United States was made by the 

people, describing them bj' one description as people of the United States — not 
confederating — nor tjing themselves together — but meaning to form a union — a 
unity — a national congress as a people. Where does a part of this people get the 

right to withdraw and renounce ? No sound and intelligent man believes it. 

Secession is a word to drug the consciences of ignorant men who are averse to 

treason. 



12 LECTURES ON THE 

have considered under various aspects, and have found illus- 
trated in different branches of our great topic, the Modern 
State. 

You will bear in mind, then, that the normal type of mod- 
ern government is the National Polity, in contradistinction to 
the ancient city- state, to the medieval feudal system, or the 
political league — as the Ilanseatic League, to the merely ag- 
glomerated monarchy, to the fragmentary monarchy, or the 
so-called universal monarchy, as it appeared last under Charles 
the Fifth, or was attemjDted by Napoleon the Fii-st, to the pro- 
vincial separatism, or to the crowns of many little kingdoms 
crowded on one head, or the breaking up of one country, 
mapped out by Nature herself, as a portion of the earth for a 
united people, into jarring and unmeaning sovereignties, that 
have not the strength to be sovereign. It is the political organ- 
ism permeating an entire nation, that answers the modern 
political necessities, and it alone can perform, as faithful hand- 
maid, the high demands of our civilization. The highest type, 
its choicest development, is the organic union of national and 
local self-government ; not indeed national centralism, or a na- 
tional unity without local vitality. Our age demands coun- 
tries as the patria both of freedom and of civilization,' and 

^ I ask permission to add, as a note, a passage of my Inaugural Address, deliv- 
ered in 1858. When speaking of the necessitj- of a national university, the follow- 
ing remarks were made : 

" Our government is a federal union. We loyall}^ adhere to it and turn our 
faces from centralization, however brilliant, for a time, the lustre of its focus may 
•appear, however imposingly centered power, that saps self-government, may hide 
for a day the inherent weakness of military concentrated polities. But truths are 
truths. It is a truth that modern civilization stands in need of entire countries; 
and it is a truth that every government, as indeed every institution whatever, is 
by its nature exposed to the danger of gradually increased, and at last excessive 
action, of its vital principle. One-sidedness is a universal effect of man's state of 
sin. Confederacies are exposed to the danger of sej unction, as unitary governments 
are exposed to absorbing central power — centrifugal power in the one case, cen- 
tripetal power in the other. That illustrious predecessor of ours, from whom we 
borrowed our very name, the United States of the Netherlands, ailed long with 
the paralyzing poison of sejunction in her limbs, and was brought to an early grave 
by it, after having added to the stock of humanity the worshipful names of Wil- 
liam of Orange, and De Witt, Grotius, De Ruyter, and William the Third. There 
is no German among you that does not sadly remember that his country, too, fur- 
nishes us with bitter commentaries on this truth ; and we are not exempt from the 
dangers common to mortals. Yet, as was indicated just now, the patria of us, 
moderns, ought to consist in a wide land covered by a nation, and not in a city or 
a little colony. Mankind have outgrown the ancient city-state. Countries are the 



CONSTITUTION OF THE UNITED STATES. 13 

the greatest political blessing vouchsafed to England M'as her 
early nationality, together with her early and lasting self-gov- 
ernment. By this combination alone she escaped being drawn 
into the vortex of centralization, which became almost univer- 
sal on the Continent. Modern patriotism will not be minim- 
ized ; it will not be restricted to a patch of land carved out by 
some accidental grant ; Lucca or Lippe are not names to inspire 
it ; it will have a portion of the earth with a dignified geograph- 
ical character, pointing to a noble purpose, and a mission im- 
posed by Him who willed that there should be nations. Is 
there anything nobler in the range of history than a free nation, 
conscious of its national dignity and purpose? Is there any- 
thing nobler to behold in our own times than the struo-o-le of 
the Italians for a united Italy, after centuries of longing — an 
Italy for which the aged Bunsen, the German scholar and high 
officer of a bureaucratic State, prayed with his dying breath ? 
Is there anything more fervent than the yearning of the Germans 
for one undivided Germany, at any cost, disregarding all the 
long-sustained but diminutive sovereignties, knowing that the 
sovereign source of political right, above all assumed sovereign- 
ties, is the conscious desire of a great people to be a nation ? 

orchards and the broad acres where modern civilization <i;athers her grain and 
nutritions fruits. The narrow garden-beds of antiquity suffice for our widened 
humanity no more than the short existence of ancient states. Moderns stand in 
need of nations, and of national longevity, for their literatures and law, their indus- 
try, liberty, and patriotism ; we want countries to work and write and glow for, 
to live and to die for. The sphere of humanity has steadily widened, and nations 
alone can now-a-days acquire the membership of that commonwealth of our race 
which extends over Eiu-ope and America. Has it ever been sufficiently impressed 
on our minds liow slender the threads are that unite us, according to some, in a 
mere political sj'stem of States, if we are not tied together by the far stronger 
cords of those feelings which arise from the consciousness of having a country to 
cling to and to pray for, and unimpeded land and water roads to move on ? 

" Should we then not avail ourselves of so well-proved a cultural means of fos- 
tering and promoting a generous nationality, as a comprehensive university is 
known to be? Shall we never have this noble pledge of our nationality? All 
Athens, the choicest city-state of antiquity, may well be said to have been one 
great university, where masters daily met with masters ; and shall we not have 
even one for our whole empire, which does not extend from bay to bay, like little 
Attica, but from sea to sea, and is destined one day to link ancient Europe to still 
older Asia, and thus to help completing the zone of civilization around the globe? 
All that has been said of countries aud nations and a national university would 
retain its full force, even if the threatened cleaving of tliis broad land should come 
upon us. But let me not enter on that topic of lowering political reality, however 
near to every citizen's heart, when I am bidden by you to discourse on political 
philosophy, and it is meet for me not to leave the. sphere of inangiiral gen- 
eralities." 



14 LECTURES ON THE 

We have discussed that great period in the history of our 
race which I have called the period of nationalization, when 
countries, national governments, national languages, and na- 
tional literatures arose from the frittered state of the feudal 
system, and have seen that many peoples of our cis-Caucasian 
race have suffered even despotism to take a wide sweep, pro- 
vided they saw that national cohesion and a j[jolitical country 
would be its effect. 

The national polity is not only the normal type of our pe- 
riod of civilization : it is also charactistic of it. For, if we can 
call the Jewish theocracy, in a purely political point of view, 
a national government composed of tribal elements, it was ex- 
ceptional in antiquity, and did not endure. After the national 
reigns of David and Solomon, Israel seceded from Judah, and 
civil war, disgrace, ruin, servitude, and paganism covered the 
land, while Isaiah threatened and Jeremiah wept. 

When, recently, we treated of the internal and administra- 
tive organization of the different governments, you will remem- 
ber that it was stated that the growth of general governments 
is various and scarcely ever of a uniform character in each 
single case. Gradual agglomeration and union, conquest, and 
a certain uniformity imposed by the conqueror, successive and 
slow systematizing, social assimilation, or a great revolution 
with a sudden and entire reorganization according to some 
distinct plan (as was the case with France in her revolution of 
the last century), evolution and revolution, force, freedom, and 
accident, are the different processes or forms of changes we 
meet with in history. These processes influence more or less 
the form of internal organization, but do not by any means 
necessarily constitute its lawful foundation. Tlie national type 
is the type imposed upon our race, as the great problem to be 
solved and its great blessing to be obtained. It is sovereign to 
all else. It is the will of our Maker — the Maker of history. 

The instinctive social cohesion, — the conscious longing and 
revealing tendency of the people to form a nation, and to make 
the minor organization subservient to the great end of the 
modern polity,^ — the true public spirit and expanding patriot- 
ism, which will not be cramped by some grant given by some 



CONSTITUTION OF THE UNITED STATES, 15 

king to needy courtiers, or extorted in times of gallant political 
egotism, — these have their plenary rights too.' There is no 
German who thinks that his heart, throbbing for his country, 
must be awed into calmness by the sovereign rights of a Duke 
of Berenburg or Keuss ; there is no Italian who — because the 
Duke of Modena had his historically established rights, or Flo- 
rence has her noble history, and Tuscany has had her kindly 
princes — thinks he must not consider it the most nobly sym- 
bolic occurrence of his history, since Rome ceased to be Rome, 
when G-aribaldi held out his hand to Victor Emanuel, and 
breathed the words, Re d'' Italia I 

And these remarks find their application in treating of the 
constituting fundamental laws of our race, and of our own 
until now revered Constitution. 

* Note. — To this passage, or to the whole page containing the concluding re- 
marks, Mr. Binney added the following memorandum : — This is historically true, 
and the Revolution could never have succeeded without it. 1 have exam- 
ined all the measures of the first Congress of Deputies in 17*74, 17*75, and they all 
speak this language. The addresses to thejpeople of Great Britain, to the king, 
to the people of the colonies, to Canada, to Jamaica — all speak the same thing. 

The people are everywhere homologous, and these papers homologated them. 

Subjects of Great Britain — people of one blood, one language, one religious 
faith, one hope, one destination, a common paternity — in fine, a family, in 

tribes. The different charters were little more than acts of incorporation, to 

give facility to political action in particular localities. 



16 LECTURES ON THE 



SECOND LECTURE. 

The flowing over of European population and its pouring 
into America, is one of the most momentous facts in the history 
of the cis-Caucasian spreading over the globe. It is the second 
Migration of Nations ; and in this migration of our race it is 
a fact of historic mark and moment that the southern European 
nations of Roman Catholic religion and of Latin despotic im- 
print, without an institutional character, colonized South 
America ; while those who peopled North America, and who 
gave it distinct social features, were sent from the Teutonic 
north of Europe, then in the great struggle of Protestantism 
with Catholicism — a struggle which extended far beyond the 
sphere of religion, when Hotman and Languet, bold Protest- 
ants, had dared to claim " sovereignty for the estates.'" These 
settlers of the North came chiefly from the Netherlands and 
from England — manly, venturous, clad in the armour of self- 
government, and belonging to a race with institutional instincts. 
This fact, and that they left Europe after the tide of national- 
ization had fairly set in, and national governments had become 
the great normal type of polity, with the necessity of countries 
large enough for large patriotism, and that they came to a large 
country — these are essential in history. They settled in a portion 
of the globe marked by a dignified geography — avast country 
with fertile plains and generous rivers and treasuring moun- 

' The intimate connection between Protestantism and modern liberty, was 
lately solemnly acknowledged, although deeply deplored, by the highest Catholic 
authority. Pius IX., in his allocution of Dec. lYth, 1860, said, " In fact, we have 
to deplore the invasion of; perverse doctrine which, sprung from the principles of 
the disastrous Reformation, has acquired almost the force of public law." I quote 
from the London Times, supposing the translation to be correct. 

I have frequently been obliged to point to the great process of nationalization 
manifest in our race. Whether this will lead to or be connected with the ultimate 
de-papalization of the Catholic Church, returning to its government by councils, 
is a speculation not to be indulged in in this place. 



CONSTITUTION OF THE UNITED STATES. l7 

tains before tliem, and behind them tbe sea — then still, as in 
the times of Horace, but now so no longer, the oceaniis dissocia- 
bilis. The character, and the breeding, and the law those men 
brouglit with them, and the great conntry they settled in, — these 
are essential in our history. The different charters, of varions 
and frequently undignified origin, obscurely and often confu- 
sedly partitioning this land, were mere conduits of this great 
migration. So far as these charters mapped out certain por- 
tions of the land, they w^ere of little more importance in the 
great translation of the Anglican race than the ships in which 
these settlers came to this continent. There was little in the 
various charters that was inherently essential, historically pre- 
disposing, historically presaging ; but there was historic pro- 
phecy in this noble land, with these great coasts, and in the 
peopling it by that virile race, "svitli its aj^titude for self-govern- 
ment, wedded to freedom, tried by persecution. It was a 
people, with the same language, the same common law, the 
same political concepts, the same reminiscences and historical 
associations of ideas, the same mother country, the same liter- 
ature, the same religion, the same aspirations, the same domes- 
tic economy, the same royalty, centering, indeed, at a distance, 
but spreading over the entire, well-marked, cohesive, yet al- 
most unbounded land, taking possession of the country by the 
same jus divinum of civilization, expounded at a later period 
by our great Judge Marshall.' They were divided by their 
charters, but at no time was their removal from one province 
to another impeded on political grounds. All owed and pro- 
fessed the same and a direct allegiance to one crown ; none were 
ever foreigners as to any of the others ; there was never even the 
incipiency of different nationalities among them. They felt 
themselves what they soon came distinctly to express themselves 
to be, a people. The national current flowed here, as it did in 
the contemporary nn-united countries, in Germany and Italy, 
that had resisted the providential decree of nationalization. 

In the middle of last century the common feeling found a 
distinct enunciation. A convention from the different colonies 
was held at Albany, in June, 1754, to consider a plan of uniting 

' Johnson v. Mackintosh, 8 Wheaton. 



18 LECTURES ON THE 

tlie colonies. The word union was there officially used. " Of 
this convention Franklin was a member, and a plan of general 
union, known afterwards as the Albaiiy plan of Union, but of 
which he was the projector and proposer, was conditionallj 
adopted by the unanimous vote of the delegates. The condi- 
tion was that it should be confirmed by the various Colonial 
Assemblies.'" 

This was in 1754. Our difficulties with the mother coun- 
try began : and from that moment the idea of one " America," 
a " United America," one people, one common cause and in- 
terest, one nation, one supreme government, became more and 
more clearly expressed and more distinctly acted upon. It was 
not, indeed, without occasional movements to the contrary; 
but though a ruffling breeze sometimes sends waves on the 
surface of our Hudson northward, and though the tide stems 
the river, its volume steadily flows in the appointed course. 

In Parliament and in British state papers, " America," as 
one country, is spoken of; we were attacked as one country, 
Ave defended ourselves as one country, and we proclaimed our 
independence as one country and called the government of 
that one country, the Union. 

Let me read to 3^ou the words of Charles Cotesworth Pinck- 
ney, the honored soldier and statesman, at one time " an au- 
thority of unbounded reverence in South Carolina." In the 
Legislature of 1788, he said : — 

" This admu'able manifesto (the Declaration of Independence) suf- 
ficiently refutes the doctrine of the individual sovereignty and inde- 
pendence of the several States, hi that declaration the several States 
are not even enumerated ; but after reciting, in nervous language and 
with convincing arguments, our right to independence, and the tyranny 
which compelled us to assert it, the declaration is made in the follow- 
ing words, &;c., &c. The separate independence and individual sover- 
eignty of the several States were never thought of by the enlightened 
band of patriots who framed this declaration. The several States are 
not even mentioned by name in any part, as if it was intended to im- 
press the maxim on America that our freedom and independence arose 
from our Union ; and that, without it, we never could be free or inde- 

' I quote from Hon. R. C. "Wintlirop's x\.ddress, delivered before the Maine 
Historical Society, Boston, 1859. 



CONSTITUTION OF THE UNITED STATES. 19 

pendent. Let us, then, consider all attempts to weaken this Union by 
maintaining that each State is separately and individually independent 
as a species of political heresy which can never benefit us, but may 
bring on us the most serious distresses."* 

It seems that tlie following chronological statement, very 
imperfect on acconnt of its brevity, will, nevertheless, be in- 
stnictive with reference to the remarks just made. 

In 17G5, the Stamp duties create a general indignation, and Thacher 
of Massachusetts, the associate of Otis, says of Virginia, which 
first spoke out in resolutions proposed by Patrick Henry : — 
" Those Virginians are men." 
" Oct. 19th. The Declaration of Rights, signed by a number 
of Colonies. 

hi 1768, Massachusetts calls upon all the colonies to join in one united 
resistance. 

hi 1772, England passes acts regarding "America." 
/ hi 1773, the year when the tea was destroyed, Franklin, agent for 
Pennsylvania, Massachusetts, New Jersey, and Georgia, re- 
commends to Massachusetts a General Congress. 

In 1774, a Convention in Suffolk county, Massachusetts, recommends 
that the detested acts " should be rejected, as the attempts of 
a wicked administration to enslave America." 

At the same time the idea of a Provincial Congress is cur- 
rent. Washington writes : — " Shall we supinely sit, and see 
one province after another fall a sacrifice to despotism ?" A 
national spirit shows itself throughout the land, and Virginia 
votes that an attack upon one colony was an attack ujDon all 
British America. 
" Sept. 5th. Congress at Philadelphia, the Continental Con- 
gress, " American Association."' 

After the separation of the Continental Congress, general 
preparation for war, and pronounced determination to assist 
one another. 

1775. " We, the delegates of the United Colonies," give the com- 
mission to Washington, and vest him " with full power and 

' Debates in South Carolina (Miller), p. 43. I quote from the Appendix to The 
Union, a Sermon delivered on the Day of the National Fast, Jan. 4, 1861, by T. 
II. Taylor, D. D. 

^ A pamphlet was published at Charleston, S. C, in 1859, " The Association of 
17*74," with the well-executed facsimiles of the signers. 



20 LECTURES ON THE 

authority to act as you shall think for the good and welfare of 
the service." 

1775. July 4th. Washington issues an order, in which he declares 
that all the troops raised, or to be raised, " for the support 
and the defence of the liberties of America" being taken into 
the pay and service of the Continental Congress, " they are 
now the troops of the United Provinces of North America ; 
and it is hoped that all distinctions of colonies will be laid 
aside, so that one and the same spirit may animate the whole." 

The first resolution of the Mecklenburg Declaration^ — that 
bold and historically naive instrument — declares : " That who- 
soever directly or inJirectly abetted or," &c., " countenanced 
the unchartered and dangerous invasion of our rights, as 
claimed by Great Britain, is an enemy to this country, to 
America, and to the inherent and inalienable rights of man."' 

1776. May 15th. Virginia directs her delegates to propose a decla- 
ration of independence to Congress. 

" July 4th. Declaration of Independence. 

" July 12th. Committee appointed to declare a plan of Con- 
federation. 

" July 9th. Washington communicates the Declaration of In- 
dependence, and, in his order of the day, says that he hopes 
that " every officer and soldier will act with fidelity and cour- 
age, as knowing" ***<•' that he is now in the service of 
a state possessed of sufficient power to reward his merit and 
advance him to the highest honors of a free country." 

The first oath administered by order of the Continental Con- 
gress was, that the officers of the army acknowledged each of 
the United States (enumerating them) to be free, independent, 
and sovereign States, abjuring allegiance to Great Britain, and 
promising to maintain the United States against George III.," 
&C."-' 

" Dec. 27th. A sort of dictatorship, with stringent authority 
" wherever he may be," is given to Washington. 

' The Second Mecklenburg Declaration, adopted 30tli May, 1775, was pre- 
sented to the Continental Congress May 27tli, 1776, six weeks before the 
adoption of the National Declaration of Independence. The second resolution of 
this second declaration of Mecklenburg begins with the words, " the Provincial 
Congress of each Province, under the direction of the great Continental Con- 
gress," <fec. — The True Origin and Source of the Mecklenburg and National Dec- 
laration of Independence. By Rev. T. Smyth, D. D., Columbia, S. C, 1847. 

« 1 Journals, 526, Oct. 21st, 1776. 



CONSTITUTION OF THE UNITED STATES. 21 

1777. Nov. 15 to 17. The Articles of Confederation and Perpetual Union 

actually adopted by Congress. State governments formed. 

1778. The oaths to be taken by the officers was modified, omitting 
the words, thirteen States, so that it read, " to the United 
States of America."* 

1782. Seal of the United States, with the inscription E Phiribus 
Unum, adopted. 

1783. Washington, in his renowned letter to the governors of the 
States, points out " four things essential to the well-being, 
I may even venture to say to the existence, of the United 
States as an independent power." And the first of these four 
things is, " An indissoluble Union of the States under one 
federal head." 

17SG. March 14th. The oath of officers is changed, and each one 
swears that " he owes faith and true allegiance to the United 
States, and agrees to maintain its freedom, sovereignty, and 
independence.''* 

1787. July 13. The '' Ordinance for the government of the Territory 
northwest of the river Ohio." 

1788. Sept. 17. Constitution of the United States, 

Gentlemen, you may examine the many folios of the Amer- 
ican Archives/ and, in all the documents and state papers 
recorded there, you will find the same tone, spirit, and lan- 
guage. The peopl<j, the nation, the conntiT, " United Amer- 
ica," as Washington used the term, at a later period,^ in the 
same sense in wdiicli we now hear of United Italy, are the 
liabitual terms used by those who struggled for independence 
and obtained it. The great Declaration of Independence has 
not a word of separate independence; not an allusion to it ; 
not one separate complaint. It is the people of the whole 
country that declare themselves independent, and unitedly 

' 2 Journals, 427, February, IVYS. 

^ 4 Journals, 463-462, March 14th, 1786. I owe this reference, and those in 
the two preceding notes, to the research of ray colleague, T. W. Dwight, LL.D., 
Prof, in the Columbia Law School. 

^ By Peter Force, Esq., published under the sanction of Congress. 

* " That as the All-wise Dispenser of human beings has favored no nation of 
the earth with more abundant and substantial means of happiness than United 
America," cfec. — Washington, in a Sketch of his Farewell Address. See H. Tin- 
ney's Inquiry into the Formation of Washington's Farewell Address. Philr.c'.el- 
phia: 1859, p. 177 ; and J. Sparks' Washington's Writings, 12 vol. p. 392. 



22 LECTURES ON THE 

complain of wrongs felt by the whole. "Before, and for 
nearly two years subsequent to the Declaration of Independ- 
ence, the struggle was maintained by union alone,"' by a peo- 
ple conscious of being one, in their formation, their interest, 
and their destiny. 

The Declaration of Independence is headed, A Declaration 
of the Representatives of the United States of America in Con- 
gress assembled. On a previous occasion the term United 
Colonies had been used. The republic of the ^Netherlands, 
whose history and polity, achievements and defects were well 
known and studied by the statesmen of our revolution, styled 
itself indifferently the United Provinces, and the United 
States, of the Netherlands ; nor was the meaning of the word 
state distinctly settled, either in Europe or America, at the 
time of the revolution. It is certain that it was not taken in 
the most enlarged sense of the different meanings which are, 
even now, attached to this word, the history of which in all the 
European languages is remarkable and instructive. 

Had there been a compact n.ame for our country, it might 
have been used ; but no name had formed itself. Science 
invents names ; but for the growth of names in practical life 
a formative naivete.) not checked by learning and literature, 
is requisite, the period of which had already passed when the 
early settlers left their mother country. This want of a name is 
to be regretted. In history, names like England, France, Italy, 
have great effect. They are the greatest national symbols a 
people can have, far greater even than a flag ; and I would 
frankly say that should really the calamity of sejunction and 
disintegration fall upon us, it would be wise for those who con- 
tinue to cohere broadly to adopt in their new national con- 
stitution one comprehensive name for the country, whether it 
be the resumption of the old name, Winland, which the Korse 
people gave to our portion of America, or any other sound and 
simple one. Taste and tact must guide in matters of this sort.^ 

' Hon. Eeverdy Johnson's speech. Proceedings at a public meeting of the 
Friends of the Union, on Jamiary 10, 1861. Baltimore: 1861. 

^ " Columbia" has been invented by poetry, for the poet must have a 
compact name ; but it has remained in the realm of poetry. It is worth noting, 
that in Europe, almost universally, the name " America" is used for the United 
States. 



CONSTITUTION OF THE UNITED STATES. 23 

In no wise however would I agree in the opinion of one of the 
most prominent American statesmen, now dead, who main- 
tained repeatedly, in the intercourse I had with him, that the 
absence of a name for onr portion of America had positive 
significance and was indeed the result of the fact that there is 
no American nation, and that we have no country. The his- 
tory of the United States, all the debates, letters, and state 
papers belonging to the transition period, from the Declaration 
of Independence to the adoption of the Constitution, the lan- 
guage of Washington and his compeers, show that this opinion 
is without foundation. 

The Americans declared themselves independent in the 
year 1776, and in 1777 the Articles of Confederation were 
adopted. The union sentiment, wdiich pervaded the whole 
people, and the necessity of united action, led to this first 
attempt at forming a united government. The succeeding 
years proved that it was no successful attempt, but they mark 
the transition period, and I invite your attention to the follow- 
ing points : — 

The title of the Articles of Confederation is : Articles of 
Confederation and Perjjetual Union hetween the States of &c. 
Here then we meet, for the second time in our history, with 
the word imion — a term the meaning of which was well estab- 
lished, and had been so for many centuries, in the English 
language. The Union is called lierjpetual. Terms of great 
force are used, both as to the intensity of combination and as 
to its duration. 

Yet the second article of this instrument runs thus : " Each 
State retains its sovereignty, freedom, and independence, and 
every power, jurisdiction, and right which is not by this con- 
federation expressly delegated to the United States in Congress 
assembled." 

What does the word sovereignty mean in this article? You 
will recollect that I showed, in the lectures on this compre- 
hensive subject at the beginning of this course, how vaguely 
the term sovereign has been used and to this day continues to 
be uged, and how unsatisfactory many arguments touching our 
highest interests are, because starting from so ill-defined and 



24 LECTTJBES ON THE 

yet so ambitions a term. Coke declared in the Commons, 
when the Bill of Rights was debating, that the English law 
did not know the w^ord sovereign. And it wonld have been far 
better had the word never entered our public law : but it 
has been used. Sovereignty, you remember, always means, 
now-a-days, either complete independence" towards other, that 
is, foreign, states, or it means not only the highest but the over- 
ruling power within a state ; or it means, in political meta- 
physics, that original self-sufficient source of authority and 
power from which all other authority is derived ; or, lastly, it 
simply means supreme, in any given sphere, being equivalent 
to chief. You will remember that the word is derived from 
tlie low latin, superanus^ and that the Italian writers of the 
middle ages speak of the sovrani and the sottani (the ujDper- 
lings and underlings). 

We need not occupy ourselves with the last mentioned two 
meanings of the term ; and as to the first two, let me observe 
that, surely, with reference to foreign states, no one in this 
country, other than the United States collectively, has ever been 
sovereign. Instead of dwelling on details that bear on this 
point, I give you an extract of Washington's letter of the 8tli 
of June, 1783 — the noble circular to the governors on disband- 
ing the army. " It is," he says, " only in our united character 
as an empire that our independence is acknowledged, that our 
power can be regarded, or our credit supported among foreign 
nations. The treaties of European powers with the United 
States of America will have no validity on a dissolution of the 
Union. We shall be left nearly in a state of nature ; or we 
may find, by our own unhappy experience, that there is a nat- 
ural and necessary progression from the extreme of anarchy 
to the extreme of tyranny, and that arbitraiy power is easily 
established on the ruins of liberty abused to licentiousness.'" 

^ Sparks' Life of Washington, vol. 8, p. 439. — I add an extract from a letter 
of Ml". Biuney, relating to this passage : — 

" Really, and in point of fact, there was at that time no legal union ; it was a 
voluntary Congress and no more. Besides, the declaration that they were inde- 
pendent States, is necessarily distributive and several. Independence is predi- 
cated of the States, and not of the one State or government formed by the Union. 
No such Union then existed, as in the language of law to constitute a State. The 
tirst Treaty with France, Gtli February, 1*778, is between 'the most Christian 



CONSTITUTION OF THE UNITED STATES. 25 

As to the second meaning of sovereignty, we know, indeed, 
for history testifies to it on every page, that the colonies exer- 
cised a very high degree of self-government at the moment in 
which independence was declared (in some cases even before 
that period), bnt never absolute autonomy. The feeling of a 
union — of mutual dependence — underlies the whole from the be- 
ginning. The ofiicial letter accompanying the Articles of Con- 
federation, dated Yorktown, November 17, 1Y77, and in which 
Congress recommends their adoption to the States, has these 
words: "In short, the salutary measure can no longer be de- 
ferred. It seems essential to our very existence as afreepeojjle.''''^ 

Congress, " supported by the confidence of the people, but 
without any express powers, undertook to direct tlie storm, and 
were seconded by the people and by the colonial authorities,"" 
and after the presentation of the Articles, as late as November 
loth, 1777, to the States (not adopted by all until the year 
1781), Congress proceeded as if invested with the most explicit 
powers; they even went so far as to bind the nation by trea- 
ties with France ; nor was it thought necessary that those 
treaties should be ratified by the State legislatures.^ • 

Yet those who incline in their arguments toward sej unction 
and who seem always to confound nationality with centraliza- 
tion object that, as soon as the colonies had declared themselves 
independent of the uniting crown of Great Britain, each one 
was of necessity sovereign in its separate character, and hence 

King and the thirteen United States of North xVmerica, to wit, New Hampshire,' 
&c., giving all their names in order. At that time the Articles of Confederation 
were not ratified by a single State. I find the dates of ratification were as 
follows : — 

By 8 States on 9th July, 177S. I By 1 State on 26th Nov., 1778. 

" 1 " on 21st " " " 1 , " on 22d Feb., 1779. 

" 1 " on 24th " " I "1 " on 1st Mar., 1780. 

This Treaty, and the Treaty of Alliance on the same day, say nothing about 
acknowlodgnient of our independence. France treated with us as independent, 
our plenipotentiaries being appointed by Congress, under the separate resolutions 
of the States, giving authority to their deputies. But the 8th article of the 
Treaty of Alliance agrees that neither of the two parties shall conclude truce or 
peace with Great Britain without consent of the other ; and they mutually engage 
' not to lay down their arms until the independence of the United States shall 
have been formally or tacitly assured by the treaty or treaties that shall termi- 
nate the war.'" 

' Elliot's Debates, vol. I. p. 70. 

* Du Toneeau, View of the Constitution. 



26 LECTUKES ON THE 

tlie words in the tliird of the Articles of Confederation, — that 
the States " severally enter into a firm league of friendship." 

These words are indeed in the third article ; but the fourth 
article has, on the contrary, a very national character. It was, 
as I have called it, a transition period — a period of forming, 
not of finished formation, with all the contradictions and un- 
clearness natural to such a period. The colonies, it is said, 
were sovereign, if for no other reason than that they were in- 
dependent, and could not be otherwise than sovereign ; but 
sovereignty cannot be predicated, it seems to me, in a purely 
negative sense. "Was Alexander Selkirk, when wholly inde- 
pendent, a sovereign ? Were the cities of the kingdom of 
Westphalia, when Jerome declared that he was no longer their 
king, and before the conquering allies took possession of them, 
sovereign ? The colonies never fully acted as so many sover- 
eigns ; all action was united American action, and it seems 
that if the distinction between de jure and de facto, or between 
practical (or, rather, f acfal) and theoretical character is inap- 
plicable to anything, it is to sovereignty. 
I These Articles, however, to which frecjuent appeal has been 
made of late, proved utterly inadequate to the wants of the 
nation. By their adoption the benefits of a government had 
been hoped for, without establishing a government. Tlie pe- 
riod from 1YY7 to the adoption of the Constitution, is marked, 
by the side of the noble deeds that were performed, with mu- 
tiny, rebellion, jealousy, extravagant notions of equality in 
Rousseau's sense, want of organic action, lack of funds, and 
the despondency of some of the best. Even Madison consid- 
ered America as almost lost ; and Washington, the Justus et 
tenax, — even he, at least on one occasion, was near losing hope. 
The call for a better and firmer system for a government be- 
came general, and after infinite toil and anxiety the Constitu- 
tion of the United States was established. It is impossible 
to understand this great document as it ought to be under- 
stood by every one who aspires to a dignified conscious- 
ness of his rights and duties as an American citizen and to 
become a guardian of American citizenship, without a minute 
knowledge of our history and a truthful study of the debates 



CONSTITUTION OF THE UNITED STATES. 27 

which led to the framing and adoption of the Constitution. I 
once more recommend to you, then, this earnest study as a 
matter of good faith, conscience, and true loyalty. In 
this place, you are aware that I can do no more than direct 
your attention to a few essential points. Let me commence 
by pointing out, in the preamble of our fundamental law, the 
three words, Constitution, People, Union, and the total absence 
of the term Sovereignty from the whole document. 

To argue from mere terms, of no definite or of a varying 
meaning, is dangerous, and frequently indicates faithlessness ; 
but when well understood terms are carefully used in contra- 
distinction to other terms, they become important. Thus we 
must observe that the fundamental law is no longer called Ar- 
ticles of Confederation, but a Constitution. The framers of the 
Constitution knew the meaning of the term. Every one of 
them had heard and read about the Constitution of England, 
by which had always been understood the aggregate of all 
those statutes, customary laws, declaratory acts and decisions, 
which form the framework of that government and secure the 
rights of Englishmen. They knew that Constitution well, for 
they had struggled long to have its benefits secured before they 
ventured on the Declaration of Independence. The term Con- 
stitution was carefully and purposely used. Madison distin- 
guished between the new Constitution and the " union when 
it was a federal one among sovereign States.'" 

This Constitution begins with the words : " We, the people 
of the United States," — to me, the most magnificent words I 
know of in all history. They seem like an entrance, full of 
grandeur and simplicity, into a wide temple. It is the whole 
nation that speaks in its entirety and power ; and yet the word 
People, in its plural sense, gives more life to it. The attempt 
has often been made, inconsistently enough, by those who call 
themselves strict constructionists, to show that We, the People, 
does not mean the people, but means the different States. This 
is a grave mistake, proved by the history of the Constitution, 
as well as by its own meaning and provisions ; as, for instance, 

' Elliot's Debates, Vol. V. p. 135. 



28 



LECTUKES ON THE 



hy the national election of the President. The mere modus 
of adopting the Constitution proves nothing. 

The People of the United States establish the Constitution 
" in order to form a more perfect union." The Articles of 
Confederation had already established a perpetual union ; a 
more perfect union, therefore, than a perpetual union, means 
more perfect in its intrinsic character. Perpetuity does not 
admit of a greater or less degree. 

We meet thus with the word union for the third time, and 
it ought to be remembered that, while the framers of our Con- 
stitution were men noted for their idiomatic use of the En- 
glish language, the meaning of the term has not changed 
from the times of Shakspeare and Milton, nor, indeed, from the 
earliest times. It has always meant a close and most intimate 
connection or inter-combination of parts, forming henceforth a 
whole. Catholics and Protestants have always called marriage 
a union of husband and wife, and have termed the relation of 
the Christian soul to Christ a union. The many attempts of 
reconciling the Protestant and Catholic Churches were called 
attempts of union.' Shakspeare and Milton use union in the 
most forcible sense. The framers of the Constitution were ac- 
quainted with De Foe's History of the Union, namely — of En- 
gland and Scotland ; Bolingbroke had spoken of the union of 
the king's subjects, meaning the entire agreement of Jacobites 
and Whigs,"" as Yilanni, in his history, speaks of " breaking the 
union of the holy Church."^ But it is useless to multiply in- 
stances. The word and its full meaning were well known to 
our Eevolutionary men. As early as 1782 they had adopted 
the inscription on the seal of the United States, E Plurihus 
UnuTYi^ and this, upon the report of three, two of whom were 
South Carolinians.'' 



' That of Leibnitz, I believe, was the last. Union was always given, in Latin, 
by Concordia. 

^ Lord Bolingbroke, in a letter offering his good services to the Ministry. 
Letters, p. 250. 

= Storia, di G. Vilanni, Giunti 158Y, 4, 21, S. 

^ The inscription had been proposed before. The three forming the commit- 
tee were Middleton, Eoudinot, and Rutledge. See Capt. Schuyler Hamilton's 
History of the National Flag, Fhiladelphia, 1853, p. 105. The English flag— 
" the Union " — was the basis of our national flag. 



CONSTITUTION OF THE UNITED STATES. 29 

Tlirougliout the Debates of the Constituent Convention we 
find it expressed — I wiali I had counted how often — that there 
is the most urgent necessity of establishing a national govern- 
ment. This is the standing phrase of all the members. They 
did not mean to make a nation. Nations are not made by 
man, but he may politically stamp a nation ; just as govern- 
ment cannot make money, but it may coin commodities that 
are already values. 

Almost as frequently we meet in the debates with the ex- 
pression, that unless we have a national government we can- 
not avoid anarchy and convulsion. Those who, like Franklin, 
did not aj)prove of every feature in the Constitution, declared 
themselves nevertheless ready to accept it, in order to prevent 
anarchy and convulsion. AVliy anarchy ? When sovereigns 
fail to conclude a league, war may follow, but it is not anar- 
chy. Anarchy is absence of law and government where they 
ought to exist — that is, among and over a people. 

Tlie Constitution declares that there is such a crime as 
treason against the United States. It defines the crime with 
distinct lineaments. Treason can only be committed by him 
who owes allegiance against him to whom he owes it. The 
Constitution, therefore, acknowledges allegiance to the United 
States ; and allegiance is the faith, fidelity and loyalty due the 
sovereign — in our case, the nation or country. If different 
states claim an allegiance due to their sovereignty, it must be 
proportioned to that sovereignty. Switzerland is divided into 
cantons, and although the deputies of the cantons were called 
ambassadors, before the Helvetic Constitution was somewhat 
assimilated to that of the United States, the Swiss publicists 
speak of the sovereignty of Switzerland and the cantonal sov- 
ereignty of each canton, meaning thereby its self-government 
with an entire organization of a government ;' but I believe the 
idea of a cantonal allegiance is unknown to them. 

The Constitution invests the national government witli 
most of the usual attributes of sovereignty — far more than the 
Netherlands would have conferred on Elizabeth had she been 
willing to become their "prince." It establishes a govern- 

' Bluntchli, General Public Law, Munich, 1857. 



30 LECTUEES ON THE 

ment in its entirety, and applies a complete representative 
government to a confederacy of state*^ with the highest de- 
gree of self-government. It does this for the first time in all 
history. The Constitution gives to the House of Representa- 
tives a complete national character, by founding the repre- 
sentation on the population, and making the representatives 
vote individually. It gives even this representative and na- 
tional character to the Senate, inasmuch as the Senators also 
vote individually, and not by States, although each State, by 
sending two Senators, irrespective of its population or wealth, 
is so far represented as State. E'o one in Congress has a 
deputative character, in the medieval sense, or is there as 
attorney, depending upon previously given instructions, as the 
ambassadors of the German princes in the German Diet." 

Extreme States-right men have expressed regret that the 
Articles of Confederation have been abandoned. Little do they 
know what they wish for'. Had our Constitution not been 
adopted, the necessary consequence of all real confederacies, or 
of an absence of general government among those who never- 
theless feel that they are destined to be one people, must have 
taken place. One or the other powerful State must, in the 
inevitable course of events, have obtained the leadership, as 
Athens or Sparta obtained the hegemony of Greece, or as, in 
the proclamation of William I., which reached us a few days 
ago, Prussia claims the German hegemony. Indeed, was not 
Yirginia actually acquiring the American hegemony ? In 
course of time, ISTew York, or Pennsylvania would have strug- 
gled for the leadership, and we should have had our Ameri- 
can Peloponnesian war, and, like Greece, be buried under it. 

The Constitution intrusts the executive power to one offi- 
cer, and that one of a broad national character, elected as he 
is by the whole. He is the standard-bearer, the gonfalonier 
of the Union. 

Washington will be admitted as one of the wisest and 
most profound witnesses as to the spirit and essence of our 
Constitution, and I may fitly conclude with some extracts 

' These subjects hare been dwelt upon in the chapter on Instruction, in my 
Political Ethics, second volume. 



CONSTITUTION OF THE UNITED STATES, 31 

from his Farewell Address, which is not only an affectionate 
address to the people, but a state paper long meditated upon 
and written most carefully, with the advice and upon the sug- 
gestions of fellow-statesmen.* This is admirably shown in Mr. 
Binney's " Inquiry into the Formation of Washington's Fare- 
well Address ;'" and European writers on public law, by the 
quotations from it with which I meet in the course of my 
reading, show that thej^ by no means consider the address in 
an affectional point of view merely. 

"Washington uses such expressions as follow : " the unity 
of government, which constitutes you one people ;" — " the name 
of American, which belongs to you in your national capacity, 
must always exalt the just pride of patriotism more than any 
appellation derived from local discriminations ;" — " carefully 
guarding and preserving the union of the whole ;" — " these con- 
siderations .... exhibit the continuance of the Union as a 
primary object of patriotic desire;" — "we are authorized to 
hope that a proper organization of the whole, with the auxil- 
iary agency of governments for the respective subdivisions, 
will afford a happy issue of the experiment ;" — " to the efficacy 
and permanency of your Union, a government of the whole is 
indispensable. No alliances, however strict, between the 
parts can be an adequate substitute ;" — " the adoption of a con- 
stitution of government better calculated than your former 
for an intimate union and for the efficacious management of 
your common concerns ;" — " respect for its authority, compli- 
ance with its laws, acquiescence in its measures, are duties 
enjoined by the fundamental maxims of true liberty;" — "the 
Constitution which at any time exists, till changed by an ex- 
plicit and authentic act of the whole j^eople, is sacredly oblig- 
atory upon all ;" — " to put, in the place of the delegated will of 
the nation, the will of a party ;" — " it will be worthy of a free, 
enlightened, and, at no distant period, a great nation ;" — " if 
we remain one people, under an efficient government," &c., &c. 
Read, I advise you, my younger hearers, the whole Farewell 
Address with that pondering attention which a paper so well- 

1 Philadelphia, 1859, 



32 LECTUEES ON THE 

advised, of so experienced, so calm, so pure and so nniver- 
sally acknowledged a statesman, demands at the hands of every 
one of us, — the document of a patriot who is daily growing in 
the affection of our race,^ and w1m> considered it the greatest 
blessing vouchsafed to him, in his eventfnl life, " to have been, 
in any degree, an instrument in the hands of Providence to 
promote order and union.'" 

The Constitution of the United States broadly declares and 
decrees that all the laws made in pursuance of the same, shall 
be the supreme law of the land. This provision and many 
more, such as that establishing a national citizenship, the organic 
law of amendment which it contains, and the characteristic 
features that have been mentioned, as well as the whole gene- 
sis of the Constitution, prove the following points : 

The Constitution is a law, with all the attributes essential 
to a law, the first of which is that it must be obeyed, and that 
there must be an authority that can enforce obedience. It is 
a law, not a mere adhortation, not a pastoral letter, not a 
"proclamation in terrorem." 

It is, as far as it goes, a full and complete law, carefully de- 
fining its own limits ; and the provision that the national gov- 
ernment has no rights but those which are granted to it, can- 
not mean that it must allow itself to be broken up whenever 
it pleases any portion possessing the " reserved rights " to do 
so. Logically speaking, it would be absurd ; morally speak- 
ing, wicked. This interpretation of the doctrine of Reserved 
Riglits, it seems, would amount to notliing less than to the 
well-known Mental Reservation, with this fearful difference, 
that we would apply to the consciences of entire States what 



' Such works as Guizot's " Essay on the Character and Influence of Wash- 
ington," translated from the French, Boston, 1840, and, indeed, many other writ- 
ings of European authors, prove that history is pointing more and more fre- 
quently to him as a favorite on that tablet on whicli the names of Thrasybulus, 
Doria, and William the Silent are inscribed beside his own, 

^ I copy these words from a letter of Washington's to his "Fellow-Citizens 
and Brothers of the Grand Lodge of Pennsylvania " (without date), which I found 
in a hairdresser's shop in New York. When waiting for my turn, and revolving 
some points of these Lectures in my mind, my attention was attracted by the gilt 
frame surrounding the letter, the genuineness of which no one acquainted with 
Washington's handwriting will doubt. I believe the letter is given in no pub- 
lished work. 



CONSTITUTION OF THE UNITED STATES. 33 

the Jesuit used for the purpose of easing the consciences 
of private persons. 

It is a national law, having proceeded from the fullness of 
the national necessity, national consciousness and national 
will, and is expressive of a national destiny. 

It is a national fundamental law, establishing a complete 
national government, — an organism of national life. It is not 
a mere league of independent states or nations ; it allows of no 
" Sonderbund." It is an organism with living functions ; not a 
string of beads in mere juxtaposition on a slender thread, 
Avhich may snap at any time and allow the beads to roll in all 
directions. 

The more you study history in candor and good faith, and 
not in order merely to collect points to make out a case, the 
more you will be convinced that, as indeed I have indicated 
before, the general government, nationally uniting a number 
of States, with the framework of local governments, is that 
very thing whicli America has contributed as her share to the 
political history of our race. A great historian has justly ob- 
served, that Athens and her many illustrious citizens were 
never so great and noble as when they were animated and 
impelled by a Pan-Hellenic spirit. And so it is with us. 
What is great, what is noble, what is of lasting effect, what is 
patriotic, what is inspiriting to behold, in our history and pub- 
lic men, is Pan-American, Provincialism has neither freed 
nor raised this people. On the contrary, every step that is 
taken, receding from the Constitution as the government of a 
nation and a united people, is a step toward the confused tran- 
sition state in which the country was under the Articles of 
Confederation ; every measure that is taken to lessen its health 
and vigor, its lawful and organic action, amounts to a drifting 
toward the anarchy from which the framers rescued the people 
with infinite labor and exertion. Sejunction, State-egotism, 
envious localism, do not only "hurt men, sed leges ao jura 
labefactant.^^ 

Our system, being neither a pure unitary government* nor 

' Lest some readers should misapprehend the term unitary ffovernment, it may 
be stated that it does not mean either monarchy or a centralized government, but 
an undivided government for a given community, be it republican or monarchical ; 

3 



34 LECTTTEES ON THE 

a pure confederacy, is not without its difficulties. It has its 
very great difficulties, as our own times prove, but neither in 
our case nor in any otlier whatsoever, he it of practice, theory, or 
science, is an elementary difficulty overcome by seizing npon 
one of the contending elements exclusively, and by carrying 
it out to a fanatical end irrespective of other elements. Seiz- 
ing upon the single idea of State-sovereignty — a modern fiction, 
taken in the sense in which the present extremists take it — 
denying, as was quite recently done in the Senate of the Uni- 
ted States, all allegiance' to the United States, and imagining 
that liberty chiefly consists in denying power and authority 
to the national government, is very much like an attempt of 
explaining the planetary system by centrifugal power alone.'* 
It is a fact, which you will mark as such for future reflection, 
that almost all, perhaps actually all, the most prominent ex- 
tremists on the State-rights side — that is to say, of those states- 
men who were most perseveringly bent on coercing the 
national government into the narrowest circle of helplessness — 
have been at the same time strongly inclined toward centrali- 
zation and consolidation of power within their respective 
States. Secessionists by profession would ciy " treason," ' in- 

the opposite of a federal government. The goyernment of Eng-land is unitary 
but not centralized. 

' The so-called "Allegiance cases," in South Carolina, 2 Hill's So. Car. Rep., 
p. 1-282, are of great interest. They have been also separatelj- published with 
the title, " The Book of Allegiance, or a Report of the Arguments of Counsel and 
Opinions of the Court of Appeals of South Carolina on the Oath of Allegiance ; 
Determined on the 24th of May, 1834." 

'^ The lecturer, according to his custom of pointing out the best writer on the 
opposite side, cited on this occasion the writings and speeches of Mr. Calhoun's 
latter period. The reader may find numerous publications taking the extreme, 
and, therefore, disjunctive State-rights views, mentioned in an article on " Lieber's 
Civil Liberty and Self-Government," by the late D. J. McCord, in the April num- 
ber of the Southern Review, Charleston, 1854. In addition, may be mentioned 
Judge Henry Baldwin's " General View of the Origin and Nature of the Constitu- 
tion and Government of the United States, deduced from the Political History 
and Condition of the Colonies and States and tlieir Public Acts in Congresses and 
Conventions from 1774 till 1788, together with their Exposition by the Sujjreme 
Court of the United States," <fec.: Philadelphia, 1837. 

^ The cliarge in such case would be grotesque. The like grotesqueness is il- 
lustrated in an incident which came to hand while these sheets were passing 
liirough the press, and which deserves being preserved in a note. If the papers 
report correctly, a Texas judge, whose name is given, of Rusk countj^, in his 
charge to the grand jury, " defined treason as a crime to be looked after in the 
event of the State withdrawing from the Union. After the State has fully and 
unconditionally severed the connection between the State and the Federal Govern- 
ment, then all who adliere to tlie Union, and so manifest the fact, are guilty of the 



CONSTITUTION OF THE UNITEC STATES. 35 

deed, were a portion of a State to intimate a desire to peel off 
one more skin of the bulb. Yet, suppose Rhode Island to 
secede, why should not Block Island set up as a nation ? I say 
sujjj^ose ! Have we not had close before our eyes a proposi- 
tion of secession for our city ? And what logical process shall 
stop US from proceeding to the sej unction of the different 
wards? One thing seems certain — and I conclude my re- 
marks with this observation — that if ever the American peo- 
ple should be forced to make a choice between a unitary 
government and an unmitigated confederacy, they would be 
obliged to select the former type.* 

crime of treason, subject and liable to indictment by the grand jury under the 
Constitution as it now exists. After secession, any word, deed, or act against tlie 
independence of the State would be treason." — National Intelligencer, Washington, 
March 2'2, 1861. 

' I append here, the last and fullest note of Mr. Binnej'. 

The confederation came first into action — I should rather say the Congress of 
Deputies — by votes of the legislative bodies in the Colonies before independence 
was declared ; it had been a^siimed for the occasion. Deputies were sent to a 
Congress by votes of the different legislatures, on various terms, generally to 
agree upon and do what was needful in the emergency. — American Archives, Vol. 
I., 69.3, 4th and 5th September, 1774. 

On the 24th of June, 1776, Congress resolved — That all persons abiding within 
any of the United Colonies, desiring protection from the laws of the same, owe alle- 
giance to the saidlaws, and are membersof such colony (2 Journal of Congress, 217): 
— that all persons members of, or owing allegiance to, iinj^ of the United Colonies, 
who shall levy war, cfec, or be adhered to the King, tfec, are guilty of treason 
against such colony : — that it be recommended to the several United Colonies to 
pass laws for punishing such persons, <te. Allegiance in these resolutions means 
obedience and nothing more. There was no independence, — no State constitution 
or government. 

On the 10th of Maj', 1776, Congi-ess recommended Colonies to establish forms 
of government. — 2 Journal of Congress, 678. 

Articles of Confederation were reported in Congress on 21st of July, 1773, and 
agreed to by Congress, 15th November, 1777; but not ratified by all the States 
until 1st of March, 1781. They were ratified by 11 States in 1778, by 1 in 1779, 
and by 1 in 1 781. Maryland seems to have been the last, on the 1st of March, 1781. 

The States adopted their forms of government on diiferent days, and in dirier- 
ent years. My edition of the first Constitutions gives these dates : New Hamp- 
shire, 5th of January, 1776, to 19th of September, 1 776 ; Massachusetts, 1st of Sep- 
tember, 1776, to 2d of March, 1780 ; llhode Island and Connecticut continued their 
Koyal Charter several years after the Constitution of the United States was 
adoi)ted; New York, 2t)th of April, 1777; New Jersey, 2d of July, 1776; 
rennsylvania, 15th of July, 1776, to 28th of September, 1776; Delaware, 20th of 
September, 1776 ; Marykind, 14th of August, 1776 ; Virginia, 6th of May, 1776, to 
5th of July, 1776 ; North Carolina, 1 9th of March, 1 778 ; Georgia, 6th of February, 
1777. — 77ie Constiutions of the United Utates, by W. Hickey, '69S. 

Now, whether some or all of these States were not fully sovereign at some 
point of time, in their separate character, as far as States can be in an undecided 
revolution, is the point. Supposing tlie acknowledgement of their independence 
to rctroact, which I think is the law, then some of them were, at some point of time, 
sovereign and independent. As soon as each had ratified the Articles of Confeder- 
ation, then such State was no longer fully sovereign, — not any of them after the 
final ratification on 1st of March, 1781. The articles recite that each State retains 



36 LECTURES ON THE 

Gentlemen, I now conclude tliis year's course on the Mod- 
ern State. ITot, indeed, that I have gone over the whole 

its sovereignty and independence, and every power, jurisdiction and right vdiicli 
is not expressly delegated to the United States, in Congress assembled. 

How much was both expressly delegated and also expressly prohibited to the 
States ? Prohibitions were, — sending and receiving embassies, or entering into 
any conference, agreement, alliance or treaty with any king, power or State. No 
two States should enter into any treaty or confederation whatever between them ; 
nor lay imposts or duties, which may interfere with treaties by Congress ; nor 
keep vessels of war in time of peace, except, Ac. ; nor keep any body of forces, 
except, <fec. ; nor engage in any war, except, (fee. Congress — the United States 
in Congress — alone had these powers ; and these exceptions held till the more 
perfect union was made in the Constitution of the United States. 

This statement disposes of the point. A sovereign who parts with such mate- 
rial jjarts of sovereignty is sub graviori lege, — not a sovereign in the general 
sense ; sovereign, perhaps, in a particular function. And so, in some particular, is 
every man. A sovereign who can neither make war nor peace, nor lay a duty — 
nor )nake a treaty — nor keep a ship of war or a soldier in time of peace — nor 
enter into an alliance with another State — cannot possibly come under the estab- 
lished definition of a sovereign. 
Illustration : 

Allegiance not due to States at all. The sense and use of the word are abused 
by giving this name to the fidelity owing by a citizen to his State. 

In the law of England, which follows the law of nations, allegiance is due only 
to the supreme protecting power — -fealty to the lord from whom the tenant derives. 
The latter word is not technically applicable to a State, but the substance of it is. 
Sovereignty in international law exists solely in the United States. Foreign 
States know nothing of our States, — our States do not separately represent the na- 
tion. Independence cannot be predicated of them separately. They are restrained 
and subordinated in many particulars by the Constitution of the United States. 
In no one instance is the United States subordinated to a State. The United 
States cover all — permeate all — defend all, both within and without, against foreign 
enemies and domestic insurrections, and against aggression by one upon another. 

The Constitution of the United States is the supreme law of the nation, and so 
are the treaties by the authority of it, and the laws in pursuance of it. 

Allegiance and. protection are reciprocal. Who protects a State against a State 
-or a foreign nation ? Who protects the inhabitant and citizen of a State from the 
same ?• Who protects a citizen from the State in which he is domiciled? Protects 
him a:i;ainst a monarchical or non-repu1)lican constitution, — laws violating obliga- 
tion of contracts — bills of attainder — ex post facto laws — tenders of paper money 
in payment of debts — against coinage of money — duties on imports or exports — 
troops, ships of war of a State ? The United States only. Who naturalizes citi- 
zens ? What Constitution do they swear to support ? Their first vow and duty 
are to the supreme law; and the same is the duty of the native born. 

Two allegiances to different kings, lords, or nations at the same time, impos- 
sible; but two fidelities in respect to different obligations, both j^ossible and com- 
mon. The irreconcilable hostility in natiire, of one allegiance to a State and 
another to the Union, is proved by the manner in which, by false doctrine, the one 
has devoured the otiier, in our own case. State rights devoiu'ing United States 
rights, and yet all the weaker for it. United States' rights cannot devour State 
I'ights, because the former are protective of the latter, — not the latter of the former. 
The idea of one nation — one people — one allegiance — is indispensable to both 
the dignity and the freedom of the United States ; no other sentiment can pro- 
tect us against the hatreds, jealousies, and hostilities which merely allied peoples 
always feel. National identity is essential to prevent the selfish principle of our 
nature from turning to opposition. The general identification is that which begets 
a love of the nation or country. We love it more than all others, because it is 
ours. 

Defend us from State-ishness ! 



CONSTITUTION OF THE UNITED STATES. 37 

ground of this comprcliensive topic ; but I have done what 
suggested itself as the best course. Wlien I prepared it, I 
asked myself, Shall I treat of the whole in an encyclopedical 
method? or sliall I treat of the most important topics in detail, 
and thereby indicate to my hearers how the subjects apper- 
taining to our great argument ought to be studied? I decided 
in favor of the latter. To learn how to study and to convey 
coherent and substantial knowledge, is more important than 
merely to transmit information. It has ever appeared to me 
that, in all public instruction, but especially in public instruc- 
tion of young men, there ought to be four main objects before 
the eye of the teacher. He ought, as a matter of course, to trans- 
mit positive information, — the facts of his science ; he ought 
to infuse and evoke knowledge, by which I understand that 
lie ought to cause his hearers to perceive the connection of 
things, and to make their essential truth part and parcel of 
the minds and souls of the hearers, so that it buds forth witlii]i 
their hearts, as wisdom, directness and loftiness of purpose, 
and rectitude of conduct. The teacher ought, moreover, to 
lead the kindly hearer to the hill-tops of the border knowledge, 
and, like a guide into a new country, show the land that lies 
beyond and the avenues that lead to it, although he may not 
at the time go fartlier along with them ; and, lastly, the public, 
as every other teacher, from the master of the primary school 
to the martyr-teacher of Athens, who taught even when dying, 
must kindle a love of knowledge, inflame the hearts of his 
hearers with a sacred zeal for critical truthfulness, a steadfast, 
an heroic devotion to that which is good and true, and impart 
to them an inmost delight in tracing the rills and swelling 
brooks of truth and right, which Providence has marked for 
the progress of our kind. What is teaching, if it be not the 
the transmission and the cultivation of truth ? What is truth, 
if it include not what is right ? 

Have I succeeded according to this standard ? My own 
conscientious zeal, which I have applied to this course, and 
your unflagging, pains-taking attention during this arduous 
course, tell me that we may hold up this standard and hon- 
estly say we have not met in vain. We have assembled in 



38 LECTURES ON THE CONSTITUTION. 

tins liall evening after evening, in fair and in inclement wea- 
ther, at a j)eriod. in our country's history when the news of 
the grave events happening before us struck our ears like the 
boom of beginning battles. Often and often have they made 
it one of the severest tasks of your teacher to concentrate his 
mind on the topic on which he was to lecture to you, and, 
when he appeared before you, to restrain his heart from over- 
flowing. Was I not here before you, lecturing on Public Law, 
on State and Government, much like a man obliged to dis- 
course on navigation, aboard a threatened craft, in foul wea- 
ther, when the ghastly foam of breakers is espied, and the 
turmoil on tlie shoal is heard to the leeward? You, on 
the other hand, soon to be active citizens of that country which 
is so rudely threatened from within, — not by gallant and inspir- 
iting enemies from without, — have steadily persevered, in the 
midst of the storms of passion blowing from afar, and perceiv- 
ing, at times, the breath of depravity near at hand. I thank you 
for this perseverance. Let us all hope that our country will 
still remain our country ; but if that be decreed which we do 
not like even to mention, remember that you, above all, are 
called upon to be the guardians of the country's rights and 
freedom ; and let us meet, wdienever we may meet again, like 
men with clean hands and clean hearts, that have not helped 
in their fair country's ruin, but on the contrary, have done all 
in their sphere to prevent that from which they avert their 
countenances M'ith sickening horror.* 

' A syllabus of the topics that remained to be discussed was given, but is 
omitted here as not of sufficient interest to the reader. 



AN ADDEESS ON SECESSION. 



In the year 1850, after the admission of California as a free State, secession 
■was urged by a strong party in South Carolina ; but when a convention was held 
in Charleston, it was found that the so-called co-operationists — that is to say, 
those who were in favor of secession, indeed, but only conjointly with other States 
— were in the majority. The Union-men of the State, desirous of doing, on their 
part, whatever might be in their power, to strengthen the Union feeling, resolved, 
in 1851, to celebrate, by a mass-meeting at Greenville, S. C, the Fourth of July, 
a day already then frequently' spoken of with little respect. Many citizens were 
invited, either to be present or " to give their views in WTiting at length," should 
they be prevented from participating in the celebration. The author was among 
the invited guests ; but, being on the point of leaving South Carolina for some 
months, he wrote the following address, which was read, and published in the 
papers of the day, fi-om one of which he now copies it, having been requested to 
do so, and being aware that it touches on subjects connected with the Lectures. 



Fellow-Citizens : This is the Fourth of July ! There is a fra- 
grance about the month of July, delightful and refreshing to every 
friend of freedom. It was on the sixth day of this month that Leo- 
nidas and his martyr band, faithful " to the latvs of their country" 
even unto death, sacrificed themselves, not to obtain a victory — they 
knew that that was beyond their reach — but to do more — to leave to 
their state, and their country, and to every successive generation of 
patriots, to the end of time, the memory of men that could " obey 
the law," and prepare themselves for a certain death for their country 
as for a joyful wedding-feast. It was on the ninth day of this month, 
that the Swiss peasants dared to make a stand, at Sempach, against 
Austria — then, as now, the drag-chain to the chariot of advancing 
Europe — that memorable day when Arnold Winkelried, seeing that 
his companions hesitated before the firm rampart of lances leveled 
against them by the Austrian knights, cried out : " Friends, I'll make 
a lane for you ! Think of my dearest wife and children?" — grasped, 
as he was a man of great strength, a whole bundle of the enemy's 
pikes, buried them in his breast, and made a breach, so that over him 



40 ADDRESS ON SECESSION. 

and the knights whom he had dragged down with him, his brethren 
could enter the hostile ranks, and with them victory for Switzerland 
and liberty ; and Arnold's carcass, mangled and trodden down, be- 
came the corner-stone of the Helvetic Republic. It was on the four- 
teenth day of this month that the French, awakened from a lethargy 
into which an infamous despotism had drugged them, stormed and 
conquered that castle of tyranny, the ominous keys of which La- 
fayette sent to our Washington, who sacredly kept them to the last 
day of his life, so that every visitor could see them, as the choicest 
present ever offered to him to whom we owe so much of our liberty 
and of the existence of our great commonwealth. And it was on this 
day that our forefathers signed that Independence which many of 
them sealed with their blood, and which the others, not permitted to 
die for their cause, soon after raised to a great historical reality, by 
the boldest conception — by engrafting, for the first time in the history 
of our kind, a representative and complete political organism on a 
confederacy of states, nicely adjusted, yet with an expansive and 
assimilative vitality. 

These are solemn recollections. As the pious Christian recounts 
the sacrifices and the victories of his church with burning gratitude 
and renewed pledges to live worthy of them, so does the fervent 
patriot remember these deeds with rekindled affections, and resolu- 
tions not to prove unworthy of such examples and unmindful of so 
great an inheritance, but, on the contrary, to do whatever in him lies 
to transmit the talent he has received from his fathers, undiminished, 
and, if God permits, increased, to his successors. 

Yet there are those in this country who daringly pretend to make 
light of the great boon received from our fathers — of this, by for the 
greatest act of our history — of that act by which we stand forth 
among the nations of the earth — the Union. There have been patriots 
as devoted as ours — there have been republics besides ours — there 
have been spreading nations like ours — there have been bold adven- 
turers pressing on into distant regions before ours — there have been 
confederacies in antiquity and modern times besides ours, — but there 
has never been a Union of free States like ours, cemented by a united 
representation of the single States, and of the people at large, woven 
together into a true Government like ours; leaving separate what 
ought to be separated, and yet uniting the whole by a broadcast and 
equal representation, changing with the changing population, so that 
we cannot fall into a dire Peloponnesian war, in which Athens and 
Sparta struggle for the leadership, — that internecine war into which 



ADDRESS ON SECESSION. 4:1 

all other confederacies have fallen, and in which they have buried 
themselves under their own ruins, unless they have slowly glided into 
submission to one Holland, or one Austria, or one Berne. Many 
federations, indeed, have had to bear the larger part of both the evils. 

There are those who pretend to make light of the Union ; there 
are those who wilfully shut their eyes to the many positive blessings 
she has bestowed upon us, and who seem to forget that the good 
which the Union, with her Supreme Court, or any other vast and last- 
ing institution, bestows upon men, consists as much in preventing 
evils as in showering benefits into our laps. There are those who Avill 
not see or hear what is happening before our own eyes in other coun- 
tries — in Germany, for instance — that living, yet bleeding, ailing, 
writhing, humbled commentator on Disunion. Ah ! fellow-citizens, 
you can but fear, and justly fear, that of disunion which I hnow. 
With you, the evils of disunion are happily but matter of appre- 
hension ; with me, unhappily, matter of living knowledge. I am like 
a man who knows the plague, because he has been in the East, where 
he witnessed its ravages ; you only know it from description — and 
easily may it be understood why I shudder when I hear persons speak 
of the plague with trifling flippancy, or courting the api^alling distem- 
per to come and make its pleasant home among us, as a sweet bless- 
ing which Providence has never yet vouchsafed to us. 

There are those who seem to imagine that the Union might be 
broken up and a new confederacy be formed with the ease and pre- 
cision with which the glazier breaks his brittle substance along the 
line which his tiny diamond has drawn — forgetting that no great in- 
stitution, and, least of all, a country, has ever broken up or can break 
up in peace, and without a struggle commensurate to its own magni- 
tude ; and that when vehement passion dashes down a noble mirror, 
no one can hope to gather a dozen well-framed looking-glasses from 
the ground. 

There are those even who think that the lines along which our 
Union will split, are ready-marked like the grooved lines in some soft 
substance, intended from the beginning to be broken into parts for 
ultimate use. 

There are those who speak of the remedy of secession — a remedy, 
as amputation would be a remedy, indeed, to cure a troublesome corn, 
or as cutting one's throat would remedy a migraine. 

There are those, even, it seems to me, who have first rashly con- 
ceived of secession as a remedy, and now adhere to it as the end and 
object to be attained, when they are shown that it would not cure the 



42 ADDKESS ON SECESSION. 

evils complained of, but, on the contrary, would induce others, in- 
finitely greater and infinitely more numerous. They fall into the 
common error of getting so deeply interested in the means, that the 
object for the obtaining of which the means was first selected is for. 
gotten. But though the error be of daily occurrence, it is a fearful 
one in this case, because the consequence would be appalling. They 
almost remind us of those good people in Tuscany, who had con- 
tracted so great a fondness for St. Romualdus, that when the saint had 
concluded to remove from among them, they resolved, in a grave 
town-meeting, to slay their patron saint, so that they might have at 
least his bones, and worship them as sacred relics. 

We have heard much of secession. It is still daily dinning in our 
ears. What is secession ? Is it revolution, or is it a lawful remedy 
to which a state is permitted to resort in right of its own sovereignty ? 
Many persons — and there are some of high authority in other matters 
among them — maintain that even though it might not be expedient 
in the present case, it cannot be denied that the right of seceding be- 
longs to every state. I have given all the attention, and applied all 
the earnest study that I am capable of to this subject ; and every- 
thing — our history, the framing of our Constitution, the correspond- 
ence of the framers, the conduct of our country, the actions of our 
States — all prove to my mind that such is not the case. It has been 
often asserted that the States are sovereign ; and they would not be 
so could they not, among other things, withdraw from the Union when- 
ever they think fit. This is purely begging the question. The ques- 
tion is what sovereignty is, and what, in particular, it means when the 
term is applied to our confederated States. No word is used in more 
different applications than this term sovereign ; but in no sense, what- 
ever width and breadth be given to it in this or in any other case, 
does it mean absolute and unlimitable power, if we speak of men. 
There is but one absolute ruler — one true sovereign. Unlimited 
power is not for men ; and the legal sage. Sir Edward Coke, went so 
far as to declare, in the memorable debates on the petition of rights, 
that " sovereignty is no parliamentary word." This is not the place 
where so subtle and comprehensive a subject can be thoroughly dis- 
cussed, but I may be permitted to touch upon a few points which may 
be examined here without inconvenience. 

What is right for one State, must needs be right for all the others. 
As to South Carolina, we can just barely imagine the possibility of 
her secession, owing to her situation near the border of the sea. 
But what would she have said a few years ago, or what indeed would 



ADDRESS ON SECESSION. 43 

she say now — I speak of South Carolina, less the secessionists — if a 
State of the interior, say Oliio, were to vindicate the presumed right 
of secession, and to declare that, being tired of a republican govern- 
ment, she prefers to establish a monarchy with some prince, imported, 
all dressed and legitimate, from that country where princes grow in 
abundance, and whence Greece, Belgium, and Portugal have been fur- 
nished with ready-made royalties — what would we say ? We would 
simply say, this cannot be and must not be. In forming the Union 
we have each given up some attributes, to receive, in turn, advan- 
tages of the last importance ; and we have in consequence so shaped 
and balanced all our systems that no member can withdraw without 
deranging and em harassing all, and ultimately destroying the whole. 

But does not the Constitution say that every power not granted in 
that instrument shall be reserved for each State 1 Assuredly it does. 
But this very provision is founded upon the supposition of the 
existence of two powers, the General and the State Governments. 
The Constitution is intended to regulate the affairs between them ; 
secession, however, annihilates one party — the General Government 
— so for as the seceding State is concerned. The supposition that the 
Constitution itself contains the tacit acknowledgment of the right of 
secession, would amount to an assumption that a principle of self- 
destruction had been infused by its own makers into the very instru- 
ment which constructs the Government. It would amount to much 
the same provision which was contained in the first democratic con- 
stitution of France, namely, that if government acts against the law, 
every citizen has the duty to take up arms against it. This was, in- 
deed, declaring Jacobinical democracy tempered by revolution, as a 
writer has called Turkey a despotism tempered by regicide. 

And can we imagine that men so sagacious, so far-seeing, on the 
one hand, and so thoroughly schooled by experience on the other, as 
the framcrs of our Constitution were, have just omitted, by some 
oversight, to speak on so important a point ? One of the greatest 
jurists of Germany said to me at Frankfort, when the Constituent 
Parliament was there assembled, of which he was a member : " The 
more I study your Constitution, the more I am amazed at the wise 
forecast of its makers, and the manly forbearance which prevented 
them from entering into any unnecessary details, so easily embar- 
rassing at a later period." They would not deserve this praise, or, 
in fact, our respect, had they been guilty of a neglect such as has 
been supposed. Can we, in our sober senses, imagine that they be- 
lieved in the right of secession, when they did not even stipulate a 



44: ADDRESS ON SECESSION. 

fixed time necessary to give notice of a contemplated secession, — know- 
ing, as they did, quite as well as we do, that not even a common treaty 
of defense or offense — no, not even one of trade and amity — is ever 
entered into hj independent powers, without stipulating the period 
which must elapse between informing the other parties of an intended 
withdi-awal and the time when it actually can take place ; and when 
they knew perfectly well that, unless such a provision is contained 
in treaties, all international law interprets them as perpetual ; — when 
they knew that not even two merchants join in partnership without 
providing for the period necessary to give notice of an intended dis- 
solution of the house ? It seems to me preposterous to suppose it. 
The absence of all mention of secession must be explained on the 
same ground on which the omission of parricide in the first Eoman 
penal laws was explained — no one thought of such a deed. 

Those that so carefully drew up our Constitution cannot be blamed 
for not having thought of this extravagance, because it had never been 
dreamt of in any confederacy, ancient, medieval, or modern. Never 
has there existed an architect so presumptuous as to consider himself 
able to build an arch equal to its purpose and use, yet each stone of 
which should be so loose that it might be removed at any time, leav- 
ing a sort of abstract arch, fit to support abstractions only — as useful 
in reality as the famous knife without a blade, of which the handle was 
missing. Those that insist on the right of secession from the Union, 
must necessarily admit the correlative right of expulsion on the part 
of the Union. Are they prepared for this ? 

If the Constitution says nothing on secession ; if it cannot be sup- 
posed to exist by implication ; if we cannot deduce it from the idea 
of sovereignty, it may be worth our while to inquire into the com- 
mon law of mankind on this subject. The common law in this case 
is history. 

Now, I have taken the pains of examining all confederacies of 
which we have any knowledge. In none of the many Greek con- 
federacies did the right of secession exist, so far as we can trace their 
fundamental principles. In some rare cases an imfaithful member 
may have been expulsed. But in the most important of all these 
confederacies, and in that which received the most complete organiz- 
ation, resembling, in many points, our own — in the Achsean League, 
there existed no right of secession, and this is proved by the follow- 
ing case : — When the Romans had obtained the supremacy over 
Hellas, and Greece was little more than a province of Rome, the 
^tolians respectfully waited upon the Roman commissioner, Gallus, 



ADDRESS ON SECESSION. 45 

to solicit permission to secede from the League. He sent them to 
the Senate, and the secessionists obtained at Rome the permission to 
withdraw — no " leading case," I suppose, for Americans. The Am- 
phictyonic Council allowed of no secession. It was Pan-Hellenic, and 
never meant to be otherwise. The medieval leagues of the Lombard 
cities, of the Swabian cities, and of the Rhenish cities, permitted no 
spontaneous withdrawal ; but the fortunes of the fiercest wars waged 
against them by the nobility, would occasionally wrench off a mem- 
ber and produce disruptions. The great Hanseatic League, which, 
by its powerful union of distant cities, became one of the most 
efficient agents in civilizing Europe, and which, as Mr. Huskisson 
stated in Parliament, carried trade and manufacture 'into England, 
knew nothing of secession until the year 1630, when the princes, 
greedy for the treasures of her cities, had decreed her destruction, 
and forced many members to secede. This is no leading case 
either. 

The Swiss Confederacy, the Germanic Federation, knew and know 
nothing of secession ; nor did the United States of the Netherlands — 
so much studied by some of our framers, and by Washington among 
them — admit the withdrawal of any single state. 

All these confeder^icies consisted of a far looser web than ours ; 
none had a federal government comparable to ours ; yet they never 
contemplated such a right. And should we do so — we, with a firmer 
union, a better understanding of politics, a nobler consciousness of 
our mission as a nation, and greater blessings at stake 1 Should we, 
indeed, of all men that ever united into federations, treat our Govern- 
ment, by which we excel all other united governments, as a sort of 
political picnic to which the invited guest may go and carry his share 
of the viands or not, as he thinks fit, or the humor may move him ? 
Are all tiie rights on the side of the States — that is, the individuals — 
and all the obligations, and obligations only, on the side of the con- 
federacy — that is, the whole ? This doctrine is the French theory of 
excessive individual right and personal sovereignty aj^plied to states, 
and naught else. 

1 ask, will any one who desires secession for the sake of bringing 
about a Southern Confederacy, honestly aver that he would insist 
upon a provision in the new constitution securing the full right of se- 
cession whenever it may be desired by any member of the expected 
confederacy 1 

To secede, then, requires revolution. Revolution for what ? To 
remedy certain evils. And how are they to be remedied ? It is a 



4G ADDRESS ON SECESSION. 

rule laid down among all the authorities of international law and 
ethics, that to be justified in going to war it is not sufficient that right 
be on our side. We must also have a fair prospect of success in our 
favor. This rule applies with ftir greater force to revolutions. The 
Jews who rose against Vespasian had all the right, I dare say, on their 
side ; but their undertaking was not a warrantable one for all that. 
We, however — should we have sufficient right on our side for plung- 
ing into a revolution — for letting loose a civil war ? Does the sys- 
tem against which we should rise contain within its own bosom no 
peaceful, lawful remedies ? 

We are often told that our foreftithers plunged into a revolution, 
why should not we ? Even if the two cases were comparable, which 
they are obviously not, I would ask on the other hand. Are we to 
have a revolution every fifty years ? Give me the Muscovite Czar 
rather than live under such a government, if government it could be 
called. I am a good swimmer, but I should not like to spend my life 
in whirlpools. And does the question of right or wrong, of truth and 
justice, go for nothing in revolutions ? 

Nor would the probability of success be in our fovor, since it is 
certain that secession cannot take place without war, and this war 
must end in one or the other of two ways. It must either kindle a 
general conflagration, or we must suffer, single-handed, the conse- 
quences of our rashness — bitter if we succeed in lopping ourselves 
off' from the trunk, bitter if we cannot succeed. Unsuccessful revolu- 
tions are not only misfortunes, they become stigmas. And what if 
the conflagration becomes general 1 Let us remember that it is a 
rule which pervades all history, because it pervades every house, that 
the enmity of contending parties is implacable and venomous in the 
same degree as they have previously stood near each other, or as na- 
ture intended the relation of good will to exist between them. It is 
the secret of all civil and religious wars : it is the secret of divided 
families : it is the explanation of unrelenting hatred between those 
who once were bosom friends. Our war would be the repetition of the 
Peloponnesian War, or of the German Thirty Years' War, with still 
greater bitterness between the enemies, because it would be far more 
unnatural. It would shed the dismal glare of barbarism on the nine- 
teenth century. Have they that long for separation forgotten that 
England, at first behind Germany, France, Italy, and Spain, rapidly out- 
stripped all, because earlier united, without permitting the crown to 
absorb the people's rights ? The separation of the South from the 
North would speedily produce a manifold disrupture, and bring us 



ADDRESS ON SECESSION'. 47 

back to a heptarchy, which was no government of seven, but a state 
of thuigs where many worried all. If there be a book which I would 
recommend, before all others, to read at this juncture, that book is 
Thucydides. It reads as if it had been written to make us pause ; as 
if the orators introduced there had spoken expressly for our benefit ; 
as if the fallacies of our days had all been used and exposed at that 
early time ; and as if in that book a very mirror were held up for 
our admonition. Or we may peruse the history of cumbered, ailing 
Germany, deprived of unity, dignity, strength, wealth, peace, and 
liberty, because her unfortunate princes have pursued, with never- 
ceasing eagerness, what is called in that country particularism — that 
is, hostility of the parts to the whole of Germany, and after the down- 
fall of Napoleon preferred the salvation of their petty sovereignties, 
conferred upon them by Napoleon, to the grandeur, peace, and 
strength of their common country. The history of Germany, the bat- 
tle-field of Europe for these three centuries, will tell you what idol 
we should worship, were we to toss our blessings to the winds, and 
were we to deprive mankind of the proud example inviting to imita- 
tion. 

I have already gone far beyond the proper limits of a communi- 
cation for the purpose for which the present one is intended, and must 
abruptly conclude where so much may yet be said. 

I will only add that I, for one, dare not do anything toward the 
disruption of the Union. Situated, as we are, between Europe and 
Asia, on a fresh continent, I see the finger of God in it. I believe our 
destiny to be a high, a great, and a solemn one, before which the dis- 
cussions now agitating us shrink into much smaller dimensions than 
they appear if we pay exclusive attention to them. I have come to 
this country, and pledged a voluntary oath to be faithful to it, and I 
will keep this oath. This is my country from the choice of manhood, 
and not by the chance of birth. In my position, as a servant of the 
State, in a public institution of education, I have imposed upon myself 
the duty of using my influence with the young neither one way 
nor the other in this discussion. I have scrupulously and conscien- 
tiously adhered to it in all my teaching and intercourse. There is not 
a man or a youth that can gainsay this. But I am a man and a citi. 
zen, and as such I have a right, or the duty, as the case may be, to 
speak my mind and my inmost convictions on solemn occasions before 
my fellow-citizens, and I have thus not hesitated to put down these 
remarks. Take them, gentlemen, for what they may be w^orth. 
They are, at any rate, sincere and fervent ; and, whatever judgment 
• 



48 ADDKESS ON SECESSION. 

others may pass upon them, or whatever attacks may be leveled 
against them, no one will be able to say that they can have been made 
to promote any individual advantages. God save the commonwealth ! 
God save the common land ! 



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